SUNDARA ADAPA Vs. GIRIJA

JUDGEMENT

(1.) THE questions of law referred for the decision of the Full Bench are:

(2.) THE material facts are not in dispute and they are fully set out in the order of reference. As per the preliminary decree dated 26.8.1952, the deceased first defendant had been allotted a 75/360th share in the family properties. He died on 25.7.1956. he had left behind him a will executed on 19.6.1956 bequeathing the properties allotted to his share as per the preliminary decree, to his wife and children who are the appellants in this case. As per section 36(3) of the Madras Aliyasanthana Act (to be referred to as the 'Aliyasanthana Act' hereinafter) he got only a life interest in the share allotted to him. This was admittedly the position on the date of the preliminary decree. But, it is contended that the life interest so secured got itself enlarged because of the Explanation to section 30(1) of the Hindu Succession Act (to be referred to as the 'Act' hereinafter). In the alternative, it is urged that the scheme of section 36 of the Aliyasanthana Act being repugnant to the provisions contained in section 7(2) and Explanation to section 30(1) (section 7 is not referred to in the order of reference) of the 'Act' the same is void under Article 254 of the Constitution; further it was argued that the provisions contained in section 36 impliedly stand repealed by virtue of section 4(1)(b) of the 'Act'.

(3.) IN the instant case we are concerned with partition and succession. Hence Chapters 11 to V of the Aliyasanthana Act are not relevant for our purpose. Primarily we are concerned with Chapter VI. This Chapter contains two sections i.e., sections 35 and 36. Section 35 says: - -